Sides with Ohio business owners

Share via e-mail

WASHINGTON — A divided appeals court panel sided on Friday with Ohio business owners who challenged the birth control mandate under the new federal health care law.

The business owners are brothers, Francis and Philip M. Gilardi, who own Freshway Foods and Freshway Logistics of Sidney, Ohio, and challenged the mandate on religious grounds. They say the mandate to provide contraceptive coverage would force them to violate their Roman Catholic beliefs and moral values by providing contraceptives such as the morning-after pill for their employees. The law already exempts houses of worship from the requirement.

The ruling by a three-judge panel of the US Court of Appeals for the District of Columbia Circuit is one of several on the birth control issue, which probably will be resolved by the Supreme Court. There have been at least three other rulings by federal appeals courts on the mandate: One sided with Oklahoma businesses; and two sided with the Obama administration in challenges brought by Pennsylvania and Michigan companies.

Writing for the majority, Judge Janice Rogers Brown wrote that the mandate ‘‘trammels the right of free exercise — a right that lies at the core of our constitutional liberties — as protected by the Religious Freedom Restoration Act.’’

Brown, an appointee of President George W. Bush, said that the mandate presented the Gilardis with a ‘‘Hobson’s choice: They can either abide by the sacred tenets of their faith, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong.’’

Friday’s ruling reversed a lower court ruling that had denied the Gilardis’ request for a preliminary injunction to block the Department of Health and Human Services from enforcing the mandate against them as business owners. The appeals court ruled that the lower court erred when it concluded the Gilardis were unlikely to succeed on the merits, and sent the case back to the lower court to consider other factors for an injunction. But Brown upheld the lower court’s dismissal of an injunction for the brothers’ companies, writing, ‘‘we have no basis for concluding a secular organization can exercise religion.’’

In an opinion dissenting from the court’s main holding in the case, Judge Harry T. Edwards wrote that legislative restrictions may trump religious exercise. He asked if the Gilardis’ companies were exempted from covering contraception would it stop another company from seeking an exemption from a requirement to cover vaccines?

‘‘The mandate does not require the Gilardis to encourage Freshway’s employees to use contraceptives any more directly than they do by authorizing Freshway to pay wages,’’ wrote Edwards, who was appointed by President Jimmy Carter. He added that the Gilardis remain free to publicly express their disapproval of contraceptives.